Immigrating to the United States has always been a complicated, drawn out legal process, requiring an endless series of forms and interviews that must be completed carefully and in the correct order. However, in recent years, the country’s representatives have recognized that immigrants often face trying circumstances that make it difficult to adhere to strict legal guidelines without endangering themselves in the process.
In the 1980s and ’90s, the American public was becoming increasingly conscious of the need to actively protect the well-being of spouses and children in abusive households. One way in which the United States addressed this was the passage of the Violence Against Women Act of 1994 (VAWA). The bill was drafted by then-Senator Joe Biden, and signed by President Bill Clinton. The purpose of VAWA was to more aggressively prosecute violent crimes perpetrated against women, strengthen sentences, and establish programs providing extended services to survivors of domestic violence.
VAWA and Immigration
Thankfully, many recognized that merely protecting American citizens wasn’t enough. Many foreign individuals found themselves in situations where their legal status in the U.S. hinged solely on relationships with their spouses who were physically, emotionally, and/or sexually abusive. Before VAWA, the sponsoring family member, who must be an American citizen or resident, would have to cooperate in filing residency applications for their spouse or children. The abused spouses and children were thus effectively trapped in their relationships, if the abusive spouse would not cooperate. In many instances, the abused threatened that they would report them to immigration to be deported, if they left or told anyone about the abuse and violence. Obviously, nobody should have to choose to remain in harm’s way in order to secure legal status for themselves.
This is why VAWA included amendments to the Immigration and Nationality Act. These provisions created special processes through which abused spouses, parents, and children could self-petition for legal residency without notifying their abusers, by applying for a VAWA-based self-petition for permanent residence, or a suspension of deportation under VAWA.
The initial version of VAWA passed in 1994 created difficulties for some immigrants in abusive relationships, necessitating the passage of the second version of VAWA in 2000 — sometimes referred to as VAWA II. The circumstances under which a victim could apply for legal status were expanded, so that victims could begin the process of divorce before applying for legal residency.
Additionally, the U nonimmigrant visa was introduced for victims of crime. Those without immigrant status could petition for a U visa by cooperating with law enforcement in the reporting and prosecution of abusers who were also perpetrators of other serious crimes.
In 2005, the ACLU issued a letter stating that VAWA was “one of the most effective pieces of legislation enacted to end domestic violence,” and that it “provided critical services necessary to support women in their struggle to overcome abusive situations.” The Act still has its share of shortcomings, but it has proven itself to be an important piece of legislation.
Eligibility for Residency under VAWA
VAWA currently applies to the abused male and female relatives of American citizens and Green Card holders (permanent residents). Those who can file a petition under VAWA fall into one of three categories of relation to abusive citizens or residents: spouses, children, and parents.
Spouses are those who are or were married to U.S. citizens or permanent residents. VAWA covers women and men who have been abused by spouses of either gender — and VAWA was recently expanded to include gay, lesbian, and transgender partners. To be eligible to self-petition for residency, you must be either (1) married to the abusive spouse in question, (2) been married to the abuser within the past two years, with the marriage ending due to either death or divorce, (3) been married to an abusive spouse who lost their legal status within the last two years due to crimes relating to domestic violence, or (4) you believed that you were legally married to your spouse, but the marriage was in fact not legitimate due to your abusive spouse committing bigamy.
Men or women who meet one of these four definitions of being a “spouse” must meet the below requirements in order to self-petition for residency for themselves and children under the age of 21 (or under 25, in some limited circumstances):
- You and/or your children were battered or subjected to extreme cruelty by your spouse.
- It should be noted that “extreme cruelty” is not limited to physical abuse. This definition can include acts such as coerced sex or molestation, stalking, verbal threats, isolation, financial recklessness, and abandonment.
- You did not enter into the marriage strictly for the purpose of immigration.
- You have resided with your spouse.
- You are a person of good moral character.
- For the purposes of immigration, “good moral character” is generally construed as meaning that you have not been convicted of crimes unrelated to charges resulting from self-defense.
Parents are those who are the parents of US citizens or permanent residents, by virtue of (1) blood relation, (2) becoming a stepparent through marriage to a biological parent before the resident child was 18 years old, or (3) adoption. Those who meet one of the definitions for being the “parent” of an American citizen or resident must meet the following requirements:
- Your son or daughter must be at least 21 years old when your self-petition is filed,
- Or you are the parent of a son or daughter who lost their residency status due to crimes related to domestic abuse,
- Or you are the parent of a son or daughter who died within 2 years of the date on which the self-petition was filed, and who was at least 21 years old at the time of their death.
- Your son or daughter physically abused you or subjected you to extreme cruelty.
- You lived with the abusive son or daughter.
- You are a person of good moral character.
Children are individuals under the age of 21 (or in some limited circumstances, under the age of 25) who are the children of American citizens or permanent residents, via (1) biological relation, (2) becoming the stepchild through a biological parent’s marriage to a US resident or citizen before the child was 18, or (3) adoption. Those who meet one of the above definitions for being the child of a resident or citizen must meet the following requirements:
- You were physically abused or subjected to extreme cruelty by your resident parent, or
- You witnessed domestic violence, abuse, or cruelty involving your parents.
- You lived with the resident parent.
- If you are over the age of 14, you must be a person of good moral character. (Children under the age of 14 are assumed to be of good moral character.)
Self-Petitioning for Residency Under VAWA
Those who meet the eligibility requirements of VAWA must currently be within the United States, unless the abusive relative is an employee of the U.S. government or a member of the military, or the abusive acts were perpetrated within the United States.
The self-petition process includes the following steps:
- Fill out Form I-360, the Petition for Amerasian, Widow(er), or Special Immigrant, and provide all required supporting documents.
- Submit the form and accompanying documentation to the USCIS Vermont Service Center.
- Assuming that all requirements have been met, a Prima Facie Determination Notice will be sent to you. This notice is valid for 150 days, and can be presented to government agencies that provide services to victims of domestic abuse.
- Upon approval of the I-360, if you do not currently have legal status in the United States, you will be placed in deferred action, allowing you to remain inside the country. Those on deferred action are allowed to work in the United States, by requesting work authorization by filing a Form I-765, the Application for Employment Authorization. This form and supporting documentation should be mailed to the Vermont Service Center, as is the case with the I-360. You may include the Form I-765 with your initial VAWA filing.
- If your I-360 application is approved, you may file for a Green Card for yourself. If you are the self-petitioning spouse or child of an abusive resident, you may also apply for Green Cards for any children you have listed on your I-360 form.
Please note that filing for residency under VAWA is a complicated process, as is the case with any legal means of immigration. The above is not an all-inclusive or complete guide to completing the process on your own. This process may vary according to your history and legal status, and so you are strongly advised to consult with an experienced immigration lawyer if you are considering filing for residency under VAWA.